Houston v. . Houston

62 N.C. 95 | N.C. | 1867

The bill alleged that Levi Houston died in 1862, leaving a will by which he devised certain lands and other estate, after the death of his wife, to two daughters, and if they "should not leave any heirs," then to revert tohis heirs, providing also that if either of such daughters "should decease, the surviving daughter should possess all the estate which he bequeathed to both, if there should be no heir left by the deceased daughter"; that a large price had been offered for some thirty or forty acres of land for a cemetery, and it would be best for all interested to sell, etc.; that some of the heirs were under age, and (96) it was desirable there should be a construction of the will.

The heirs were all made parties, and filed answers admitting the facts set forth in the bill; and there was a report by the Master approving of the proposal to sell. The principles involved in the question which this case presents were fully considered by the court in Troy v. Troy, 45 N.C. 85, and Watson v.Watson, 56 N.C. 400. In the former we said "that a Court of Equity has in this State the power to decree a sale of land held in trust for a femecovert and infants, upon the petition of the feme and the guardian of the infants," and that in a proper case a sale would be ordered, and the proceeds directed to be laid out in the purchase of other lands, or perhaps vested in stock and settled upon the same trust. See Rev. Stat., ch. 44, secs. 26 and 27; Rev. Code, ch. 54, secs. 32 and 33. The same thing was said in Watson v. Watson, with regard to the case of a devise to one for life, remainder in fee to infant children in esse; but we held that if the children was not in esse the court had not power to act, because such children in posse could not be represented before it.

The present case differs in its facts from both of those to which we have referred, but in principle it accords with the former.

Here the devise of the testator gives to his widow an estate for life in the land in question, with remainder in fee to his two daughters as tenants in common, with cross remainders in the event of either dying without leaving issue in the lifetime of the other; and, upon both dying without leaving issue, with an executory devise in (97) fee to the heirs of the testator.

All the persons who have any interest in the land, whether vested, contingent or executory, are in esse, and are before the court. If they were all of age they could, by uniting in a deed of bargain and sale, convey a good title to the purchaser; but as some of them are infants, it requires the aid of the Court of Equity to make the assurance good. All the parties who can act for themselves agree that the proposed sale would be an advantageous one, and the Clerk and Master, upon a reference, has reported that the best interests of the infants would be promoted by it. We think, therefore, that the sale ought to be made, and there may be an order for that purpose.

PER CURIAM. Decree accordingly.

Cited: Dodd, ex parte, 99 post; Barcello v. Hapgood, 118 N.C. 726.